"THE LACK OF ADVERSITY ARGUMENT IS NOT WELL TAKENAND NOT SUPPORTED BY THE AUTHORITY CITED

The first COUNTERSTATEMENT OF ISSUES PRESENTED in the Opposition is

1. Whether dismissal of Hollister's complaint was properunder Fed. R. Civ. P. 12(b)(6) because he failed to state a plausible interpleader claim with adverse claimants and a tangible stake.

We point out that the appellees filed no cross appeal so that they havepresented no such issue.

...

In his opinion of March 5, 2009, Judge Robertson found that he had jurisdiction because of the interpleader statute (App. 210). Since the statute requires diversity of rival claimants addressed in the filing of the interpleader this means that he found such adversity of claimants to exist.

In examining adversity of claims as an element of standing we would ask the Court to exercise great care and to be wary of authority cited by the appellees that does not truly apply. The case law authority cited by the appellees on this point is particularly in appropros. Their lead case is Indianapolis Colts v. Mayor & City Council of Balt., 733 F.2d 484, 488 (7 th Cir.1984) The facts of that case, however,are completely distinct from the facts of this case. Principally, there was no interpleader jurisdiction in that case because the City of Baltimore was trying to take over the Colts football team, which had left Baltimore for Indianapolis, by the use of eminent domain.

Even less apropos is the attempt by the appellees to compare the facts of this case to those of Bierman v. Marcus, 246 F.2d 200, 203 (3d Cir. 1957). They cite this last case for the proposition that "Actually, what has been done in this suit has been to misuse interpleader, based on mere pretense of adverse claims to a fund, to obtain jurisdiction of controversies other than entitlement to that fund.." The actual facts of the Bierman case show that this is a highly misleading misrepresentation.

Nor is the argument of the appellees supported by the Supreme Court decision in Treinies v. Sunshine Mining Co., 308 U.S. 66, 72 (1939). (Opp. p. 14)That case involved an alleged conflict between two state court decisions in two different states, Washington and Idaho, as to the ownership in question. It was held that there was no conflict between the decisions because the Idaho decision had established ares judicataby considering the Washington decision and finding that it had been rendered without jurisdiction over the subject matter. This eliminated the possible conflicting claims that were alleged in the interpleader complaint.

Moreover, the appellees seek to do so by ignoring the rule attendant upon dismissal motions that the words of the complaint must be construed with inferences in favor of the plaintiff. That this is the standard the appellees themselves state and concede (Opp. p. 7) citing Barr v. Clinton, 370 F.3d 1196,1199 (D.C.Cir.2004) Yet they seek to have the court make inferences in disfavor of the plaintiff.

Read in its entirety, the complaint clearly sets out the facts that if as alleged the defendant Soetoro a/k/a Obama is not capable of giving a lawful order because his occupation of the office of the presidency is only de facto then the plaintiff, Colonel Hollister, must look to the defendant Biden as the one who is de jure the Commander-in-Chief from whom he must accept orders. This occurs by operation of the very Constitution whose violation by the defendant Soetoro a/k/a Obama is at issue.

THE SAME IS TRUE OF THE ARGUMENT THATTHERE IS NO COGNIZABLE STAKE.

Just as we have shown that the argument of the appellees that there is no adversity is not supported by the cases that the appellees have cited and is not well taken, we now show that the same is true of the argument that they advance that there is no cognizable stake under the federal interpleader statute that was alleged or shown here. As with the first argument that we have addressed, the defendants/appellees did not counter-appeal the finding of jurisdiction by the lower court that was necessarily implicit in the lower courts finding that it had jurisdiction because of the statute and thus this issue has not been presented to this Court.

In seeking to lead the Court into paying no attention to the clear meaning of the interpleader act in its use of the word obligation, the appellees rely heavily upon Murphy v. Trav. Ins. Co., 534 F.2d 1155, 1159 (5 th Cir.1976). In using the quote that they chose from the Murphy case (Opp. p. 11), the appellees select a quote which only deals with the language of the statute that they want the court to consider exclusively,without taking account of the use of the word obligation or of the duties that constitute that obligation here.

...

ARTICLE III STANDING APART FROM INTERPLEADER

Without explaining why it would be relevant, the appellees make an argument about standing under statutes other than interpleader. (Opp. p.20) They seem to be assuming that they can argue Article III lack of standing regardless of the prescription of the Interpleader Act.

This entire argument of the appellees about Article III standing requirements not being met by the plaintiff here is made without reference to the fact that in this instance Congress has expressly conferred standing by passage of the Interpleader Act.

...

THE FAILURE TO CONSIDER THE AMENDED COMPLAINT IS GROUNDS FOR REVERSAL

In an argument beginning on p. 17 the appellees first set out the accurate observation that the amended complaint filed by the plaintiff added a new and different cause of action. Then, having acknowledged that fact, they argue that the amended complaint was properly ignored and the case dismissed because the amended complaint added nothing to the original complaint. How an amended complaint, amended once as a matter of right before any responsive pleading is filed. can add a whole new cause of action and not add anything new they do not explain.

...

RULE 11 SANCTIONS AND BIAS

The Opposition assumes that the opinions below were all correct and that,therefore, the only issue with regard to sanctions is the type of sanction. This over looks the possibility of any error below. Since we have shown that there was error below, it is axiomatic that an award of sanctions of any sort was improper. In any case, the court below did not particularize its charges of violations of Rule 11as we pointed out in our brief is required. Nor did the court below conduct any inquiry into what the pre-filing inquiry was with regard to any of the three prongs of Rule 11 as required. Based on its looking into vetting, blogging and twittering on the Internet, the court below found that the complaint and the filings of the undersigned were frivolous. Thus there was no proper analysis to justify the selection of any sanction under Rule 11.

...

CONCLUSION

The thrust of the Opposition, with its misrepresentations, approval of bias and pejorative mischaracterization, is to make the Court feel that if it dares to take its oath to the Constitution as seriously as Colonel Hollister does, and apply the law, it will be doing something unthinkable. It is not an appeal to the Rule of Law.

"The other team's lawyers are wrong, not only that, they are full of absurd bullshiite. They are quoting and misquoting all the exactly wrong cases, and if you believe them, you're gonna look pretty damn dumb, your Honor, Sir."

Other than that, and a few typos, which nowadays seem inevitable, this is a hard-hitting piece of legal writing.

...except that it is totally wrong. The defense did not have to file a Notice of Cross-Appeal to raise new grounds, because an appellate court has the power to affirm a judgment of dismissal on any ground found in the record, even if it was not the ground relied upon by the trial court. (In other words, if the trial judge reached the right result for the wrong reasons, the Court of Appeals must still affirm.) Perkins Coie did nothing more than raise additional arguments why the district court's dismissal of the suit was proper.

Merriam Webster: apropos Main Entry: ap·ro·pos Pronunciation: \ˌa-prə-ˈpō, ˈa-prə-ˌ\ Function: adverb Etymology: French à propos, literally, to the purpose Date: 1668 So, I would beg to differ with Kenny Bunk and agree with rolling_stone as to its proper use in the sentence. It was 'less to the purpose' [in its Opposition] for Perkins Coie to compare facts of Hollister's case to another, irrelevant case, the legal eagle claims. Its spelling is correct. Also the typos don't show up at PACER. Scribd is a conversion program that sometimes creates typos.

Well, my translation of what Lawyer Hemenway had to say in his appeal is, IMHO, pretty good. But now I ain't so sure what Lawyer Hemenway has to say is pretty good, case-wise, that is. Can't wait to hear what the Judge has to say.

And apropos of being unsure about that, it seems I screwed up apropos of apropos. Now it is derived from the Latin "a Proposito," which means "in regard to that which was under consideration." So I am unilaterally calling this grammatical controversy a draw.

I beg for mercy because I fear I have lost many IQ points since Obama has assumed the emperorship. I simply cannot figure out how a guy whose dad is an honest-to-god foreigner fits into Article II of the Consitution. Whenever I bring it up, people look at me as if I am really daft, and tell me, "He was born in Hawaii." I reckon it's my fault that I cannot understand how that fact, if it is a fact, makes him eligible. I am not jealous of Hawaiians for getting more than their fair share of Global Warming. I would feel the same way if Obama had been born in Maine. One's cat having kittens in the oven does not make them biscuits.

It is mentally disabling to have The Electoral College disagree with me on this.

I agree with your interpretation of Article II. Being born in HI would make a child a ‘native born citizen,” if not a ‘natural born’ citizen. Being born in HI to two U.S. citizen parents would make that child ‘natural born,’ the Constitutional requirement for POTUS, and for POTUS only. Obviously, since one of BHO’s parents was not a citizen, it is not clear if he fits the Founder’s intent of having a ‘native born citizen’ as president and Commander in Chief.

If this or any other eligibility case would actually be taken by the SCOTUS, they would at long last have to establish what the Founders meant by the term ‘natural born,’ not what any statute or Congressional resolution or pundit or HI doctor or lawyer or even any FReeper says or thinks.

It’s not the Electoral College that matters. The Electoral College is comprised only of electors chosen in each state to cast that state’s votes for POTUS. Each state has a R team of electors, and a D team of electors. Whichever party wins the majority of votes in each state sends its chosen electors to Washington to cast their votes. The electors are partisans to begin with, they don’t decide anything.

As to the court’s consideration of Hollister’s appeal, there would be a panel of three judges initially that have to review the filings, not one. Then, whatever that panel decides, there would be a request for the full court to review and decide. Then it is ready for SCOTUS, which can elect to hear the case, or not.

He was not wrong, the poster Lurking Libertarian was wrong. The failure to counter appeal argument was addressed to the fact that Robertson had found that he had jurisdiction, which necessarily means that he accepted that the plaintiff had standing, not to the reasons for his dismissal. The Perkins Coie lawyers did not appeal his finding that jurisdiction and standing existed before he dismissed under Rule 12(b)(6) for what he found to be a failure to state a claim.

28
posted on 01/07/2010 4:29:56 AM PST
by AmericanVictory
(Should we be more like them or they more like we used to be?)

(1)He was not wrong, the poster Lurking Libertarian was wrong. (2)... Robertson had found that he had jurisdiction, which necessarily means that he accepted that the plaintiff had standing, not to the reasons for his dismissal.

I agree Robertson's acceptance of jurisdiction is a great step forward. I agree that this relates to standing of the plaintiffs. But, I also fear that it will limit the case to procedural, rather than substantive matters.

I am really afraid that they will agree to the plaintiff's standing, but uphold the dismissal for failure to state a claim.Awaiting (with trepidation)to hear what this panel says.

In reThe electors are partisans to begin with, they dont decide anything.

It continues to astound me that no Elector did not at least put forth the question. It amazed me even more that VP Cheney, as President of the College of Electors, did not make even the pro forma request for any objections.

30
posted on 01/07/2010 8:32:27 AM PST
by Kenny Bunk
(The eligibility topic is closed (for me) until after Writs of Quo Warranto hearings are held.)

I remain puzzled by how a judge can dismiss under Rule 12(b)(6) without considering what a meritorious claim would consist of. How does one assess whether or not a claim is sufficiently stated without analyzing what a sufficient claim would consist of?

31
posted on 01/07/2010 8:51:37 AM PST
by AmericanVictory
(Should we be more like them or they more like we used to be?)

I remain puzzled by how a judge can dismiss under Rule 12(b)(6) without considering what a meritorious claim would consist of. How does one assess whether or not a claim is sufficiently stated without analyzing what a sufficient claim would consist of?

Call it "Judicial Grasping at Straws." The plaintiffs are playing their hand quite well, but I have the feeling that this deck is stacked against them.

32
posted on 01/07/2010 8:59:47 AM PST
by Kenny Bunk
(The eligibility topic is closed (for me) until after Writs of Quo Warranto hearings are held.)

Timetables don’t govern the judges, only the lawyers !! It’s sort of how Congress makes laws from which they exempt themselves.

BUT ... let’s assume for now that all the briefing at the Court of Appeals is done. (we’ll leave motions aside). AND, I am not a lawyer and am going by memory (which gives LOTS of wiggle room).

I assume that the briefing is concluded because the party who appeals is given a date to file his/her/their opening brief; the appellees have another designated date (usually a month - 30 days) to file an opposing brief; then the appellant has another 2 weeks to file the Reply Brief. This thread shows a Reply Brief. Nothing further is filed by the appellees. It’s the appellant who has to prove his/her/their case, so they are given the rebuttal.

The Clerk makes sure everything is in order and gives it to the judges chosen for the case’s panel. Well, the Clerk gives it to the judges clerks. At the appellate level those clerks tend to be recent law school grads, which is a little frightening, even tho at this court they would be among the best of the recent crop. My concern would be not only their lack of experience, but political biases going in. R-appointed judges tend to choose R-leaning law clerks, and D-appointed judges tend to choose D-leaning clerks, so there’s a little more politics in the court than we’d like to see. (note that Sotomayor worked for Judge Abner Mikva, who before his judgeship was a liberal Dem Congressman).

The Clerks review all the briefs, the cases cited and arguments made, and prepare summaries for and against. They often look to other cases for precedent, as well. The judges review the summaries, take a vote and decide what they will do. They may appoint one to write an opinion. Or not. They can just file an order setting out their decision, i.e., the decision of the lower court is affirmed, or there is a remand back to the lower court for further consideration. No timetable.

Whichever party doesn’t like the order usually will file for a reconsideration by the panel, pointing out where that party thinks they are wrong on the law or the facts, and/or a reconsideration by the entire court. That has to be done within 30 days in this court. Other courts have shorter time frames.

I don’t know how often a panel reverses itself, but again we’ll assume they stand by their decision. So, the reconsideration motion would be circulated to all the judges sitting on that court. If X number of judges want to review the panel’s decision, the whole court has to have their clerks review and go through the same process as the panel had done earlier. They issue an order and/or opinion based on the full court’s review. Again, there’s no timetable for that.

In any case, once a case has completed its rounds at a Court of Appeals, unless it is remanded to a lower court for further consideration, it is ready for the SCOTUS. Whichever party didn’t like the ultimate ruling has 90 days to file its appeal petition there.

The SCOTUS does not have to accept any appeal or state why it isn’t taking it. They historically take maybe 50 cases a year out of something like 8K that are submitted.

The wheels of justice, a wise man said, grind exceedingly slow. How fine they grind remains to be seen.

I remain puzzled by how a judge can dismiss under Rule 12(b)(6) without considering what a meritorious claim would consist of. How does one assess whether or not a claim is sufficiently stated without analyzing what a sufficient claim would consist of?

The claim in this case was brought under the interpleader statute. The interpleader statute requires two or more competing claims to money or property worth more than $10,000. The district judge held (and the appellate court will agree) that the Complaint didn't state a claim under the interpleader statute because there are no competing claims being made against the plaintiff, and because the plaintiff's "loyalty" isn't "money or property."

He was not wrong, the poster Lurking Libertarian was wrong. The failure to counter appeal argument was addressed to the fact that Robertson had found that he had jurisdiction, which necessarily means that he accepted that the plaintiff had standing, not to the reasons for his dismissal. The Perkins Coie lawyers did not appeal his finding that jurisdiction and standing existed before he dismissed under Rule 12(b)(6) for what he found to be a failure to state a claim.

No, you're wrong. A cross-appeal is necessary in federal court if the party who won below wants the appellate court to grant him more relief than the trial court did. (For example, if the trial court dismissed without prejudice, and the defendant thinks the dismissal should have been with prejudice, the defendant must cross-appeal.) A cross-appeal is not necessary if the defendant is happy with the result, but thinks the trial court should have reached that result through different reasoning.

Here, the result was the dismissal of the case. The defendants can defend that result on any ground, including grounds not relied on by the district judge. Thus, they can argue that dismissal was proper because the court had no jurisdiction, because dismissal for lack of jurisdiction wouldn't give them any greater relief than dismissal for failure to state a claim.

I forgot to add that you are wrong for another reason as well. If the appellate court finds that the trial court did not have jurisdiction, it is required to dismiss the case even if no party ever raised the issue at all. See, for example, this case.

You either have not read the brief or you do not understand Rule 12(b)(6). Rule 12(b)(6) is different from Rule 12(b)(1) in that it does go to the merits, as the Supreme Court has pointed out, and says that on the merits a claim is not sufficiently made out, oh lurking liberi.

41
posted on 01/07/2010 7:26:52 PM PST
by AmericanVictory
(Should we be more like them or they more like we used to be?)

You either have not read the brief or you do not understand Rule 12(b)(6). Rule 12(b)(6) is different from Rule 12(b)(1) in that it does go to the merits, as the Supreme Court has pointed out, and says that on the merits a claim is not sufficiently made out, oh lurking liberi.

I know that well. But the brief is still wrong in claiming the defendants had to cross-appeal.

Why don’t you actually read the brief. That’s not what it says. It only says that the defendnnts did not present the issue because they failed to cross appeal. It then says, and cites authority to support that all appellate courts may examine standing on their own motion and indeed are obliged to do so. When you misrepresent what the brief says it’s fairly easy to find your own failure to read what it actually says wrong. Of course it is true that the appellate court may consider standing but you have inaccurately described the brief as saying what it does not in fact say. You have then assailed your own mischaracterization of what it says.

43
posted on 01/08/2010 10:05:32 AM PST
by AmericanVictory
(Should we be more like them or they more like we used to be?)

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